Pardon before conviction?

Can the President pardon people who haven’t been convicted?

Jacob Leibenluft, in his article in Slate, has missed an important point. To understand the pardon power, we need to examine just what is happening when an executive with pardon power grants a pardon. What he is saying, essentially, is “I won’t enforce a sentence against x for y, and I bind my successors not to do so as well.”

Where the question gets interesting is when we ask if he can grant a pardon for a conviction that has not yet occurred, or prevent a trial from being held. From my historical research, and despite Ex parte Garland, I find the answer to both is no. A pardon has to specify a sentence as well as the defendant, and that can’t be known before conviction. Granting a pardon to someone for anything he might be convicted of, in advance of such conviction, is in conflict with the constitutional prohibition against granting titles of nobility, and exempting someone from prosecution for anything at all is making that person a noble, even if it comes only with a title of “he who is above the law”. Leaving aside the obvious likelihood that the Court in Ex parte Garland was corrupt, this point was not argued before the Court and therefore the precedent does not cover it.

Even if we ignore the problem of conflict with the title of nobility prohibition, it cannot be logically inferred from the pardon power that a pardon can prevent prosecution. The president may refuse to carry out a sentence but he has no power to prevent a charge from being filed, an indictment obtained, and the court from trying the accused. The court might be reluctant to do so if the sentence won’t be imposed, but a trial serves many purposes besides executable conviction, one of the most important of which is to bring out the truth, and it may be important to proceed with trial even if the conviction won’t be executed.

There is also an issue of whether a president can bind his successors not to enforce a conviction. That is an implied power of a monarch, but not of a president. My finding is that the pardon power of the president is not the power to bind his successors.

Voting for the least embarrassing

I have found this presidential election enlightening for the motives I found among the partisans for each of the main candidates. They had very little to do with policy or promises. They had everything to do with how the candidate projected strength or resolve.

Trump made the point that he could shoot someone on Fifth Avenue and his followers would still support him.That is likely to be almost literally true.
Supporters of a candidate tend not to care about the faults of a candidate as long as he or she doesn't make them look bad, or weak. In general, they want their leaders to project the qualities they admire, whether or he or she has those qualities. It is appearances that matter. The worst thing a candidate can do is be a laughingstock. We don't want other people to think our leader is a joke.
So most people don't care what a candidate has done or is likely to do, because most of that is not likely to affect him personally. Of course, delivering on benefits matters, because that is likely affect him personally. "Sp steal or kill all you want, candidate, as long as you don't steal from or kill me, or look foolish doing it. I don't want to have to apologize for you.

Now clearly people are going to differ in what they think will reflect badly on themselves.

Type 1. Some want the candidate to be cultured and refined, never vulgar or uncouth. They also want him to be tall, attractive, witty, and well-spoken. In their social class that is what matters to having prestige. Such persons like soaring rhetoric that makes them feel exalted, as long as it doesn't ask  them to sacrifice anything important to them, such as the lives of people they don't know.

Type 2. Others want the candidate to project strength or "toughness". Never mind if the exercise of it may be misdirected. If one wants the candidate to be tough in some ways, it may not matter if that toughness strikes at the wrong things (as long as it is not oneself). Such tastes tend to be for force and the willingness to use it, and often reflect a sense of personal or physical inadequacy.

When party leaders try to recruit candidates they usually seek someone of Type 1. But these days candidates of Type 1 are often taken to be or represent "The Establishment". Candidates of Type 2 may seem to represent "The People", even if they are less well educated than candidates of Type 1, who don't need to know anything as long as they are tough enough to find the people that do. Of course, candidates of Type 2 can seem alarming to voters who want Type 1 candidates, and vice versa. One never knows what they might do, and it is easy to imagine the worst. It may come as a surprise to them if the Type 2 candidate, if he wins, governs more like a Type 1.
On the other hand, if Type 2s establish a pattern of winning, it also becomes more likely that they will eventually set up for a Type 2 who does fulfill the worst fears of the Type 1s.
One of the characteristics of Type 2 is a rejection of complexity, or at least of the need to address it in making decisions. This is the basis of the old maxim of politics, "If you have to explain it, you're losing." Type 2 people just want things fixed. They don't want to know how. But Type 1 people often know how complex the world is, and that there often are no simple solutions. Perhaps not any solutions at all that Type 2 people would accept. Or any experts that can tell us what to do. People in government often pretend to be more expert than they are, than anyone is. And they often don't know enough to know who the experts are, or whether there any any experts.

That leads to my proposed Epitaph for Humanity:

They were smart enough to create problems for themselves they weren't smart enough to solve.